Stereo H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT
Criminal Appeal No.1114/2011
Muhammad Safdar versus The State
Murder Reference No.272 of 2011
The State versus Muhammad Safdar
JUDGMENT
Date of hearing

07.10.2015.

Appellant (Muhammad
Safdar), represented by:

Barrister Salman Safdar, Advocate

The State by:

Mr. Tariq Javed, District Public Prosecutor.

Complainant (Shoukat
Ali) by

Mian Javed Iqbal, Advocate

SARDAR AHMED NAEEM, J.-

Muhammad

Safdar (appellant), accused of case FIR No.80/2010 dated

06.02.2010, under section 302 of the Pakistan Penal Code,
1860, registered at Police Station,

City Gojra, District Toba

Tek Singh, at the instance of Shoukat Ali, complainant, was

tried by the learned Addl. Sessions Judge, Gojra for
committing Qatl-i-Amd of Mst. Aysha. At the conclusion of the
trial, vide judgment dated 15.06.2011, the appellant was
convicted and sentenced as under:under section 302(b) PPC to death with a direction to pay
Rs.1,00,000/- to the legal heirs of the deceased as
compensation under section 544-A, Cr.P.C, and in case of
default of payment thereof, undergo simple imprisonment
for six months.

2.

The appellant has challenged his conviction and

sentence through Criminal Appeal No.1114 of 2011. The

learned trial Court has also sent Murder Reference No.272 of
2011,

under

section

374,

Cr.P.C.

for

confirmation,

or

otherwise, of death sentence of the appellant. We intend to

decide both the matters through this judgment.
3.

Prosecution story, as narrated by Shaukat Ali

complainant in his complaint Exh.PA, on the basis whereof

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

formal FIR Exh.PA/1 was registered, was that on 06.02.2010

at 2.00 P.M. the appellant committed intentional murder of his
wife/complainants sister, namely, Mst. Aysha Bibi in her
house situated in Chak No.298/JB, within the area of Police
Station City Gojra, District Toba Tek Singh. The occurrence
was witnessed by Muhammad Sarwar and Muhammad
Shahid Nadeem PWs.
Motive behind the occurrence was that accused
always used to chastise his wife for not having any offspring
and intended to contract second marriage, therefore, he time
and again extended threats to kill her.
4.

Muhammad Quresh, SI (PW-10) after getting the

case registered on 06.02.2010 on the written application

Exh.PA moved by Shoukat Ali complainant, proceeded to the
place of occurrence and examined the dead body of Mst.
Aysha, prepared injury statement and inquest report. He
handed over the dead body along with police papers to Javed
Iqbal 802/C for autopsy. He inspected the place of occurrence
along with PWs, prepared site plan Exh.PI. After postmortem
examination Javed Iqbal 802/C produced before him the last
worn clothes of the deceased i.e. Qameez P-1, Shalwar P-2
and Dopatta P-3 along with three sealed jars, which he
secured vide recovery memo Exh.PJ. On 12.02.2010, he got
non-bailable warrants of arrest of Safdar, accused, and
handed over to Muhammad Akhtar 739/C for execution. On
17.02.2010, he obtained the proclamation of Safdar accused.
On 18.02.2010, he arrested Safdar accused. On 19.02.2010,
he obtained physical remand of

the accused. He got

confronted both the parties on 20.02.2010. On 21.02.2010, he

got sent the accused to judicial lock up. On 22.10.2010, he
recorded statements of the Moharrir and Javed Iqbal 802/C
with regard to sending of parcels to the office of Chemical
Examiner, Punjab, Lahore. On 23.02.2010, he got challaned
the accused.

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

5.

Dr. Faiza Kanwal (PW-8), conducted postmortem

examination of Mst. Aysha Bibi on 07.02.2010 and found four

injuries on her person. Time between injuries and death was
immediate and between death and postmortem examination
was within 12 to 24 hours. Exh.PC was the correct carbon
copy of Postmortem examination report of Mst. Aysha Bibi
deceased which was in her handwriting and bore her
signatures.

Exh.PC/1

&

Exh.PC/1-2

were

the

pictorial

diagrams of the seats of injuries which were also in her

handwriting and bore her signatures. She also endorsed the
injury statement of Mst. Aysha Bibi deceased Exh.PD and
inquest report Exh.PE. On receipt of report of Chemical
Examiner, Punjab, Lahore Exh.PF, she made her report Exh.PG
which was in her handwriting and bore her signatures.
According to her findings on report

Exh.PG, cause of death in

this case was asphyxia due to throttling on account of injuries

No.1,2 and 4 which were ante mortem and sufficient to cause
death in ordinary course of nature. However, the injury No.3
was also ante mortem in nature but was insufficient to cause
death.
6.

Learned trial court after receipt of the challan,

formulated charge sheet against the appellant on 31.03.2010,

under section 302 PPC, to which he pleaded not guilty and
claimed to be tried.
7.

In order to prove its case against the appellant,

prosecution produced

ten (10) witnesses in all. Muhammad

Sarwar (PW-6) and Shahid Nadeem (PW-7) furnished the

ocular account of the occurrence. Zahid Mahmood ASI, PW.2 on
receipt of complaint Exh.PA recorded formal FIR Exh.PA/1.
Javed Iqbal 802/C (PW.3) deposited the three sealed parcels
said to contain three boxes and three envelopes in the office of
Chemical

Examiner,

Lahore.

Mian

Muhammad

Rafiq,

Draftsman (PW.4) prepared the scaled site-plan Exh.PB and

Exh.PB/1 of the place of occurrence. Shoukat Ali PW.5

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

reiterated the contents of his complaint Exh.PA. Muhammad

Quresh, SI (PW-10) investigated the case, who has already
been discussed above. Dr. Faiza Kanwal (PW-8), as discussed
above, performed autopsy of the deceased, namely Mst.
Ayesha Bibi. Rest of the witnesses are formal in nature,
therefore, need not be discussed. Learned DDPP after
tendering in evidence attested copy of report of Forensic
Histopathologist Exh.PK closed the prosecution evidence.
8.

At the close of prosecution evidence, Muhammad

Safdar (appellant) was examined under section 342 Cr.P.C.

wherein he refuted the prosecution evidence and pleaded
innocence. While responding to question No.10 Why this case
against you and why the PWs have deposed against you he
replied in the following manner:The complainant is real brother of Mst. Asia Bibi
alias Aysha deceased. From Dubai, I sent money for
my wife, who was living at Faisalabad with her
parents,
through
complainant
and
he
misappropriated the said money and to avoid the
explanation regarding said money he changed the
natural death of my wife Mst. Asia Bibi alias Aysha
into a murder with the connivance of local police and
doctor. The other witnesses of the alleged occurrence
are also his behnoi and real brother who are under
the influence of the complainant. No independent
witness from the vicinity of occurrence has deposed
against me or about the alleged motive of the
occurrence

The appellant neither made his statement on oath under

section 340 (2) Cr.P.C. nor opted to produce any defence
evidence.
9.

Learned counsel for the appellant argued that the

ocular account does not inspire confidence as both the

witnesses are interested and has reasoned to depose falsely
against the appellant. It was submitted that the prosecution
evidence is contradictory and that ocular account is at
variance with the medical evidence in this case. He argued
that the evidence regarding existence of motive was very weak
and although the occurrence had taken place within the house

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

of the appellant but no independent witness was cited or

produced by the prosecution and that the PWs examined in
this case are closely related to each other and were chance
witnesses. Learned counsel further contended that it was unseen occurrence and that the conduct of the eye witnesses
was un-natural. The eye witnesses were real uncle and behnoi
of the deceased but they did not intercept the appellant till the
completion of the incident, in particular, when he was empty
handed and physically weaker than the eye witnesses, which
makes the story of the prosecution improbable. Learned
counsel bitterly criticized that no cause of death was
mentioned by the Medical Officer at the time of postmortem
examination and then, death was found to be a result of
strangulation/asphyxia prior to report of Histopathologist and
that the Medical Officer found all the injuries sustained by the
deceased as ante-mortem, after considerable time of the
postmortem examination, which belies the story of the
prosecution. The defence version if taken into juxtaposition
appears to be reasonable/probable; that the motive in this
case was not proved and the prosecution failed to prove its
case beyond reasonable doubt against the appellant, thus, he
was entitled to acquittal. In support of above contentions,
learned counsel

relied upon ABDUL MAJEED V. THE

STATE (2011 SCMR 941), SAEED AHMAD V. THE STATE

(2015 SCMR 710), ALI SHER V. THE STATE (2015 SCMR
142), MUHAMMAD RAFIQUE V. THE STATE (2014 SCMR
1698) MUHAMMAD ASHRAF V. THE STATE (2012 SCMR
419) and ABID ALI and 2 others V. The State (2011
SCMR 208)
10.
the

Learned District Public Prosecutor assisted by

learned counsel for the complainant submitted that the

witnesses for the prosecution have no personal animosity with

the appellant to falsely implicate him; that all the witnesses
are natural witnesses being close relative of the deceased

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

inside the house of the appellant and that their evidence

cannot be discarded merely on the basis of their relationship
with

the

deceased/inter-se;

corroborated

the

prosecution

that

the

version;

medical
that

the

evidence
medical

evidence was never challenged in cross examination; that it

was a daylight occurrence, parties were closely related to each
other, thus, there was no question of mis-identity; that it was a
single accused and substitution in such like cases is a real
phenomenon; that the discrepancies pointed out by the
learned defence counsel were minor in nature; that the
defence was not able to demolish the prosecution case and the
witnesses firmly with stood the test of cross examination; that
the prosecution proved its case against the appellant beyond
reasonable doubt and that he deserves normal penalty of
death as provided under the law
11.

We have heard the learned counsel for the

contending parties and gone through the record of the case.

12.

The question as to the cause of death was central

in this case, as argued by the learned counsel for the

appellant. Did the victim die as a result of throttling caused by
the appellant? He bitterly criticized the Postmortem report with
specific reference to its contents and statement of the Medical
Officer. The postmortem report Exh.PC is silent about the
cause of death. In order to determine the cause of death in this
case, the following points deserve consideration:i)
The statement of the Medical Officer/contents
of the postmortem report.
ii)
The symptoms regarding asphyxia, if any,
observed by the Medical Officer.
iii) The final opinion of the Medical Officer about
cause of death based on the report of Chemical
Examiner four months prior to the report of
Histopathologist, in particular, when she had not
declared the injuries as ante-mortem in the
postmortem report.
As mentioned above, the postmortem report is
silent about cause of death. However, Dr. Faiza Kanwal (PW.8)

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

while relying upon the report of Chemical Examiner (Exh.PF)

opined that the cause of death in this case was asphyxia due
to throttling and due to injuries No.1, 2 and 4 ante-mortem in
nature.
Asphyxia
Asphyxia

or

asphyxiation

from

Ancient

Greek

without and sphyxis, squeeze is a condition of

severely deficient supply of oxygen to the body that
arises from abnormal breathing. Asphyxia is something
that many people died of throughout the world and it is
something that many people think simply the act of
suffocation or smothering a victim until he can no
longer

breathe.

hypoxia/anoxia
function

is

Asphyxiation

that

is

hampered

caused
by

is

defined

when

interference

as

respiratory
with

the

mechanics of breathing.
In

this

case,

the

deceased

died

of

strangulation/throttling.
Strangulation
Strangulation is defined as form of asphyxia (lack of
oxygen) characterized by closure of blood vessels/or air
passages of neck as a result of external pressure on the
neck.
Manual Strangulation (throttling) is usually done
with the hands.
Neck anatomy
A rudimentary knowledge of neck anatomy is critical in
order to understand adequately the clinical features of
strangled victim.
The hyoid bone a small horseshoe shaped
bone in the neck helps to support the tongue.
The larynx, made up of cartilage, not bone,
consist of two parts: the thyroid cartilage and
the tracheal rings.

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

Carotids are the major vessels that transport

oxygenated blood from the heart and lungs to
the brain. These are the arteries at the side of
the neck that persons administering CPR
(cardio-pulmonary

resuscitation)

check

for

pulses.
Jugular veins are the major vessels that
transport deoxygenated blood from the brain
back to the heart.
The general clinical sequence of a victim who is
being

strangled

is

one

of

severe

pain

followed

by

unconsciousness, followed by brain death. The victim will lose

consciousness by any one or all of the following:i.

Blocking of the carotid arteries (depriving

the brain of oxygen);
Blocking of the jugular veins (preventing
deoxygenated blood from exiting the brain;)
and
Closing off the airway, causing the victim
to be unable to breathe.

ii.

iii.

Visible injuries to the neck include scratches,

abrasion and scrapes. These may be from the victims own
fingernails as a defensive maneuver, but commonly are a
combination of lesions caused by both the victim and the
assailant fingernails. Lesion location varies depending on
whether the victim or assailant used one or two hands and
whether the assailant strangled the victim from the front or
back. Three types of fingernail marking may occur, singly or in
combination:

impression,

scratch,

or claw marks.

Chin

abrasions are also common in victims of manual strangulation

as the victim lowers the chin in an instinctive effort to protect
the neck and in so doing, scrapes the chin against the
assailants hands.
We wish the expert would have been forthright in
her view in regard to the cause of death. A different conclusion
was required to be arrived at keeping in view the fact that a

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

large number of symptoms were absent which ordinarily point

out to the cause of death of asphyxia by throttling. Even, the
prosecution failed to furnish the following details:i.
ii.
iii.

iv.
v.
vi.
vii.

Whether deceased was strangled with

one or two hands? Forearms?
How long did the accused strangled
the deceased?
How many time and how many
different methods were used
to
strangled the deceased?
Was the deceased thrown against the
wall, floor or ground?
How much pressure or how hard was
the grip?
Did the deceased have difficult
breathing? and
Did the deceased attempt to protect
herself?

In view of the above it is not proved by the

prosecution that the deceased met the un-natural death as
result

of

strangulation.

Admittedly,

the

postmortem

examination of the deceased was conducted; however, the

nature of the injuries and cause of death was not mentioned in
the said report. The defence taking the benefit of the same had
agitated that Mst. Aysha did not meet violent death. However,
the fact that she died on 06.02.2010 is not disputed. It is well
settled law that medical examination/postmortem examination
of a deceased is made for limited purposes only to corroborate
and support the substantive /circumstantial evidence. Failure
to conduct postmortem/medical examination of the deceased
would not allow to disbelieve that the deceased died natural
death.

Respectful reliance can be placed on case titled

ABDUR REHMAN V. THE STATE (1998 SCMR 1778).

In another case titled RIAZ MASIH alias BHOLA V.
THE STATE (2001 YLR 279) where there was contradiction
between medical and ocular account, it was held that the
ocular testimony is to be preferred over medical evidence and
that if ocular account proves the injuries and the unnatural
death, the same cannot be brushed aside only because the

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

10

medical examination/postmortem examination

was

not

conducted. Assuming that postmortem examination was not

conducted in the instant case, therefore, we decided to
undertake the exercise to evaluate the ocular account
furnished by PWs Muhammad Sarwar (PW-6) and Shahid
Nadeem (PW-7) at trial.
13.

The incident in the present case took place on

06.02.2010 at about 2.00 p.m

inside the house of the

appellant situated within the area of Chak No.298-JB Tehsil

Gojra, District Toba Tek Singh. The distance between the place
of occurrence and Police Station was two kilometer. The FIR
Exh.PA/I was registered at the instance of Shoukat Ali, the
real brother of the deceased. However, he was not the eye
witness and was informed regarding this occurrence by
Muhammad Sarwar PW.6 and Muhammad Shahid Nadeem
PW.7. They were sent to the house of the deceased by the
complainant so that they could resolve the dispute between
the appellant and the deceased. The eye witnesses, at trial,
deposed that on 06.02.2010, they reached in the house of the
deceased at about 11.00 a.m and beseeched the appellant
that the deceased may not be teased and then, at 2.00 p.m,
the

appellant

had

altercation

with

the

deceased

and

strangulated her to death. The place of occurrence was a

residential room of the house of the deceased. They raised hue
and

cry

and

informed

regarding

this

occurrence

the

complainant

and

upon

his

telephonically
arrival,

the

proceedings in this case were initiated. The eye witnesses

were in unison that they were healthy/energetic than the
appellant but they did nothing to save the life of the deceased,
though, Muhammad Shahid Nadeem PW.7 claimed to have
intervened/intercepted to save her from the clutches of the
appellant. There was no hurdle in their way. They all were
present/sitting in the same room. What prevented both the eye
witnesses not to move forward to rescue the deceased, in

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

11

particular, when the appellant was empty handed or they only

had gone to the place of occurrence just to witness the
incident. If it is believed that the appellant said in their
presence that he would murder the deceased, it was not
difficult for him to eliminate her, in their absence, any time as
she was living with him. How did the appellant run away from
the place of occurrence and why did the witnesses allow him
to leave the place of occurrence was also a question mark.
They have not offered any resistance to the appellant to save
the life of the deceased, which is un-natural/unusual. If they
had seen the incident, matter should have been reported to the
police

with reasonable promptitude. They informed the

complainant telephonically and the FIR was registered upon

his arrival, which suggests consultation/deliberation. No
independent witness was closely related to the complainant
and being inmates of the house/family members of the
deceased were the best witnesses but their evidence finds no
corroboration from the material available on record. Either they
have not seen the occurrence or they came to the crime scene
after having information of the incident or the occurrence took
place in a different mode as claimed by the prosecution. No
doubt, the dead body of the deceased was seized from the
house of the appellant but this alone would not show that the
deceased was killed by him.
It was a case of manual strangulation and thus,
there was no recovery. Regarding motive, it was mentioned in
Exh.PA that the appellant intended to contract second
marriage as the deceased was issueless, however, no
information was provided regarding the lady with whom he
intended to get marry even her name was not mentioned by
any of the witness during trial and thus, motive as set up by
the prosecution was not proved.
14.

As a result of the observations made above, we

have come to the conclusion that the prosecution has failed to

Criminal Appeal No.1114 of 2011

Murder Reference No.272 of 2011

12

bring home the guilt to the appellant beyond any shadow of

doubt and that the learned trial Court was not justified in
convicting him. We, accordingly, accept the appeal and set
aside the conviction and sentence by acquitting the appellant.
He be released forthwith, if not required in any other criminal
case.
15.

The

Murder

Reference

is

answered

in

the

Negative and death sentence is not confirmed.

(MUHAMMAD TARIQ ABBASI)

JUDGE

(SARDAR AHMED NAEEM)

JUDGE

APPROVED FOR REPORTING

irfan*